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2013 DIGILAW 2099 (BOM)

SANDEEP MOHAN JADHAV v. STATE OF MAHARASHTRA

2013-10-08

B.R.GAVAI, Z.A.HAQ

body2013
Judgment : B. R. GAVAI, J. This appeal takes exception to the judgment and order dated 1st December, 2009 in Sessions Trial No. 7 of 2007 thereby convicting the appellant for the offence punishable under section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 10,000/-, in default to suffer simple imprisonment for two years. 2. The prosecution case, in brief, is as under : That the accused and the deceased Shashikalabai were residing in village Kakaddati in the neighbourhood. Radhabai d/o. Shashikalabai was given in marriage to the son of Waman Dhule by name Gajanan. The husband of Radha died and she started residing with her mother Shashikalabai and brother Sambha. She was working in one mess. It is the prosecution case that appellant/accused Sandeep used to harass Radhabai and at times, was trying to outrage her modesty. The matter was taken up to the Sarpanch of the village namely Arvind Damodhar Pulate (PW-1), who said that he will convince the accused and if there is no change, Radhabai should lodge report against the accused. Radhabai had accordingly lodged report against the accused complaining about his behaviour in the Police Station. The accused was arrested and subsequently, released on bail. On the day of incident, Radhabai along with her mother Shashikala were returning from Pusad in an auto rickshaw. The accused had gathered information regarding whereabouts of Radhabai and Shashikalabai from Payal d/o. Sudhakar Dhule (PW-4). The accused waited for Radhabai and Shashikalabai and when they alighted from the auto rickshaw, he assaulted Radhabai with sword stick. When Shashikalabai tried to intervene, the accused attacked her also. Both of them fell down. Payal (PW-4) informed about the incident to Kalawati Waman Dule (PW-5). Kalawati rushed to Sambha Baliram Kamble (PW-8). Radhabai died on the spot while Shashikalabai was serious. The accused was standing with blood stained sword stick in his hand. Sambha went to call his elder sister. When he returned back, he saw the accused lying down in an injured condition. He shifted his mother and sister to the hospital and then lodged report. Shashikalabai died during the course of treatment whereas Radhabai was found dead at the time of admission. The accused, who was also injured, was referred to the hospital at. 3. When he returned back, he saw the accused lying down in an injured condition. He shifted his mother and sister to the hospital and then lodged report. Shashikalabai died during the course of treatment whereas Radhabai was found dead at the time of admission. The accused, who was also injured, was referred to the hospital at. 3. After investigation, the charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class committed the case to the Court of Sessions. Charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. His defence was that there was love affair between him and deceased Radhabai since about two years. However, the said love affair was opposed by Sambha (PW-8) and his father Waman. His defence is that when, on the day of incident, he had gone to Pusad in an auto rickshaw along with Radhabai and Shashikalabai and when alighting on return from the auto rickshaw, two persons, who had covered their faces, started beating Radhabai and Shashikala. When he rushed to save them, he was caught by one person and the another person attacked him by a sharp weapon on his stomach and throat. At that time, one bus was coming from Umarkhed side and the assailants left him and ran away from the spot. Report was lodged by Radhabai against him at the instance of her brother Sambha. At the conclusion of the trial, the learned trial Judge convicted and sentenced the appellant as aforesaid. Hence, this appeal. 4. Mr. Vinay Dahat, learned Counsel (appointed) for the appellant submits that the learned trial Judge committed an error in convicting the appellant only on the basis of evidence of Payal (PW-4) - a child witness. He further submits that there is no corroboration to the evidence of said Payal. The learned Counsel further submits that the version of the prosecution that the appellant himself had caused injuries on his stomach and throat is unbelievable. He submits that it is difficult to believe that a person would assault himself on throat as well as stomach. The learned Counsel, therefore, submits that the appeal deserves to be allowed and the order of conviction needs to be set aside. 5. Mr. He submits that it is difficult to believe that a person would assault himself on throat as well as stomach. The learned Counsel, therefore, submits that the appeal deserves to be allowed and the order of conviction needs to be set aside. 5. Mr. S. M. Ghodeswar, learned A.P.P. for the respondent, on the contrary, submits that Payal (PW-4) is aged about 13 years and she was in a position to understand and therefore, her evidence cannot be discarded. He further submits that the evidence of Payal is corroborated by the evidence of Kamlabai (PW-3), Kalawatibai (PW-5) and Sambha (PW-8). 6. With the assistance of the learned A.P.P. and the learned Counsel for the appellant/accused, we have scrutinized the evidence. 7. Payal (PW-4) has categorically stated that, at the time of incident, she was at house. He submits that, prior to the incident, when she went to fetch water from a water tap, the accused came near her and asked her where her aunt Radhabai had gone. She, therefore, told him that Radhabai and Shashikalabai have gone to Pusad. She states that thereafter she came home. At that time, appellant Sandeep was sitting on the road. She further states that, at around 5 p.m., she saw that her aunt Radhabai and her mother Shashikalabai returned home by an auto rickshaw. When they were alighting from the auto rickshaw, the accused caught hold of hair of her aunt Radhabai and stabbed her by gupti on her stomach. She further states that when her grandmother went to rescue Radhabai, the accused also assaulted Radhabai by gupti on her chest. Thereafter, the accused also inflicted injuries on his throat and stomach by means of said gupti. She states that, after the above incident, she rushed to the house of her paternal grandmother Kalawatibai and informed her about the same. Though this witness has been thoroughly cross-examined, nothing damaging has been recited by her in her evidence. From the evidence of this witness, it appears that the said witness though aged 13 years, is a mature witness and was in a position to understand what is wrong and right. 8. It would be relevant to refer the following observations of the Apex Court in the case of Tehal Singh and others vs. State of Punjab, AIR 1979 SC 1347 . "Hardip Singh is a lad of 13 years. 8. It would be relevant to refer the following observations of the Apex Court in the case of Tehal Singh and others vs. State of Punjab, AIR 1979 SC 1347 . "Hardip Singh is a lad of 13 years. In our country and particularly in the rural areas it is difficult to think of a lad of thirteen years as a child. A vast majority of boys round about that age go to the fields and do men's work. They are certainly capable of understanding the significance of the oath and the necessity to speak the truth. The learned Sessions Judge who had the opportunity of seeing the witness Hardip Singh in the witness box did not consider it necessary to treat him as a child witness. A perusal of his evidence also shows that he has certainly attained a measure of mature understanding. We do not think we can accept Dr. Chitaley's argument and proceed on the basis that Hardip Singh is a child witness. Even otherwise, having gone through his evidence we are satisfied that his evidence does not suffer from any infirmity. He was cross-examined at great length but nothing was elicited from him to dub him as a false or a tutored witness. The mere circumstance that he is the son of one of the deceased persons does not justify our looking at his evidence with any suspicion." 9. We find that the aforesaid observations would be applicable in the present case. From the evidence of Payal (PW-4), it cannot be said that she has not attained majority. She also comes from a rustic rural background. In spite of thorough cross-examination, nothing damaging has come on record in her evidence. The learned trial Judge, who was having an opportunity to put questions to this witness and ascertain about her understanding, also found her evidence to be trustworthy. 10. It is further to be noted that evidence of Payal (PW-4) is corroborated by Kalawatibai (PW-5). She has stated in her evidence that immediately after the incident took place, Payal rushed towards her and told that the accused had assaulted her aunt Radhabai and Shashikala. She further states that when she went to see on the road, Radhabai and her mother Shashikalabai were lying in injured condition and the accused was standing having gupti in his hand. She further states that when she went to see on the road, Radhabai and her mother Shashikalabai were lying in injured condition and the accused was standing having gupti in his hand. She states that accused Sandeep thereafter assaulted himself and inflicted injuries by himself on his throat, neck and stomach. 11. Sambha (PW-8) is the complainant. He states in his evidence that Kalawatibai had come to his house and told him that the accused had assaulted his mother Shashikalabai and sister Radhabai with gupti. He states that thereafter he went to the spot. He saw his mother and sister were lying on the road in a pool of blood. He further states that the accused was standing there with a gupti in his hand. He then rushed to inform his elder sister Nanda. When he returned back on the spot along with his sister Nanda, he saw that the accused was also lying on the road and he was having injuries on his neck and stomach. The evidence of this witness is corroborated by the First Information Report lodged at his instance. 12. Kamlabai (PW-3) who is a neighbour of the deceased and the accused had also narrated regarding the previous incident wherein the accused had pulled Radhabai by catching her hand and Radhabai was telling him not to trouble her. It appears that the said witness has been examined in order to bring the aspect of motive on record. It can thus be seen that the evidence of Payal (PW-4) is wholly corroborated by Kamlabai (PW-3), Kalawati (PW-5) and Sambha (PW-8). 13. The evidence of Dr. Jaikumar Naik (PW-2) would show that the injuries which were caused were possible by gupti, which is a weapon alleged by the prosecution to have been used in the crime. Said gupti was found on the spot and seized from there. Dr. Sameer Joshi (PW-7) in his evidence has also stated that the self-inflicted injuries on the person of the accused are also possible by gupti (Article I). 14. It can thus be seen that the ocular testimony of Payal (PW-4) is fully corroborated by the evidence of other witnesses. In that view of the matter, we find that the prosecution has proved the case beyond reasonable doubt that it is the present appellant who has caused death of deceased Radhabai and Shashikalabai. 14. It can thus be seen that the ocular testimony of Payal (PW-4) is fully corroborated by the evidence of other witnesses. In that view of the matter, we find that the prosecution has proved the case beyond reasonable doubt that it is the present appellant who has caused death of deceased Radhabai and Shashikalabai. From the evidence of Payal, it is also clear that the accused had premeditated the crime inasmuch as he had asked whereabouts of the deceased from Payal and when he came to know that they were to return from Pusad, he was waiting on the road for their arrival. The moment the deceased alighted from the auto rickshaw, the accused assaulted deceased Radhabai and when Shashikalabai tried to intervene, he also assaulted her. It appears that thereafter realising his mistake, he caused injuries on his person. We do not find that there is any reason to disbelieve the version of Payal (PW-4) and other witnesses. In that view of the matter, the appeal is without merits and as such, it is dismissed. The fees of Mr. Vinay Dahat, learned Counsel appointed for the appellant/accused is quantified at Rs. 5,000/-.